Whitsaim Pty Ltd & Ors v Toms Tyres Corporation Pty Ltd & Anor [1996] FCA 1016

Whitsaim Pty Ltd & Ors v Toms Tyres Corporation Pty Ltd & Anor [1996] FCA 1016

Although the corporate applicant had ceased trading and was insolvent, security for costs was refused because the individual applicants were personally exposed to costs and at least one had regular income, the application was not shown to be hopeless, the respondents' alleged conduct might have contributed to the impecuniosity of the individual applicants, the second applicant was also subject to a cross-claim, and the respondents delayed in bringing the motion after first requesting security.

Jurisdiction
Australia
Judgment Date
07 November 1996
Procedural Posture
Application for Security for Costs / Interlocutory Motion
Outcome
Respondents' motion for security for costs refused.
Legal Topics
['security for Costs' 'insolvent Corporate Applicant' 'discretion' 'cross Claim' 'delay' 'mediation']
['civil Procedure' 'costs'] ['security for Costs' 'insolvent Corporate Applicant' 'discretion' 'cross Claim' 'delay' 'mediation']

Case Brief

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Procedural Posture

Application for Security for Costs / Interlocutory Motion

Legal Issues

  1. 1 ['Whether the Court should order security for costs where the corporate applicant had ceased to trade and was insolvent.' "Whether the presence of individual applicants personally liable for costs, the merits of the proceeding, alleged contribution to impecuniosity, the respondents' cross-claim, and delay in bringing the motion justified refusing security."]

Ratio Decidendi

Although the corporate applicant had ceased trading and was insolvent, security for costs was refused because the individual applicants were personally exposed to costs and at least one had regular income, the application was not shown to be hopeless, the respondents' alleged conduct might have contributed to the impecuniosity of the individual applicants, the second applicant was also subject to a cross-claim, and the respondents delayed in bringing the motion after first requesting security.

Court Disposition

Respondents' motion for security for costs refused.

Orders

  • ['The motion for security is refused.' "Each party's costs of the motion are that party's costs in the cause." 'The directions hearing fixed for 15 November 1996 is vacated.' 'The next directions hearing is to occur on a date to be fixed after completion of the mediation ordered by Marshall J on 23 October 1996.']